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Ability to Revoke TCPA Consent Limited When Consent Was Provided Via Contract
April 3, 2019

Ability to Revoke TCPA Consent Limited When Consent Was Provided Via Contract

By: Andrew Silver

Although the Telephone Consumer Protection Act (“TCPA”) limits the ways in which companies may contact individuals via automated dialers, with prerecorded messages, or via text message, one of its hallmarks is that companies are entitled to contact consumers who have provided their express consent to be called.  However, in 2015, the Federal Communications Commission (“FCC”) stated that individuals who previously consented to be contacted may revoke such consent “at any time and through any reasonable means.”  The United States Court of Appeals for the D.C. Circuit upheld this interpretation in its 2018 decision in ACA International V. FCC .

Naturally, the remaining question to be tackled is determining what, exactly, constitutes “reasonable means.”  Although courts consider a variety of arguments as to what is “reasonable” and have reached a variety of different conclusions—which could be the subject of an entire series of blog posts—one factual scenario which has been subject to litigation in recent years is how the revocation-of-consent analysis changes in situations where the individual provided express consent as part of a term in a contract with the business making the calls (or sending the text messages).

The United States Court of Appeals for the Second Circuit confronted this very question in 2017 in its decision in Reyes v. Lincoln Automobile Financial Services.  In Reyes, a consumer who—in his contract with an auto lender—had provided express consent to be contacted via phone and text message, attempted to revoke that consent via a letter mailed to the lender.  After filing a TCPA lawsuit when the calls continued, the trial court granted summary judgment to the lender, and the Second Circuit affirmed, finding that “the TCPA does not permit a party to a legally binding contract to unilaterally revoke bargained-for consent to be contacted by telephone.”

The decision in Reyes has opened the door for businesses to assert that consumers who provided express consent as a contract term cannot revoke that consent, for purposes of a TCPA claim.  Unsurprisingly, several trial courts in the Second Circuit have followed Reyes and held similarly, including the United States District Court for the Southern District of New York just last month in Ford v. Bluestem Brands, Inc., where the plaintiff had consented to receive calls in an account application.

At least one trial court outside of the Second Circuit has likewise followed Reyes, as the United States District Court for the Middle District of Florida, when presented with a similar fact pattern, likewise held in Medley v. Dish Network that “[n]othing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction to black-letter law.”  The decision in Medley is current on appeal before the United States Court of Appeals for the Eleventh Circuit.

Other courts have explicitly and implicitly criticized Reyes for going too far by ruling in favor of the defendant where the contract at issue provided no manner to revoke a contractually provided consent.  For example, in Rodriguez v. Premier Bankcard, LLC, the United States Court for the Northern District of Ohio ruled against a defendant in a case involving a contractually bargained-for consent clause when it found that even contractually bargained-for consent cannot be fully irrevocable, where the contract at issue did not set forth a revocation mechanism.  Other courts to reach similar conclusions include the Northern District of Iowa in Thompson-Harback v. USAA Federal Savings Bank, the Northern District of Alabama in Few v. Receivables Performance Management, LLC, and the Middle District of Tennessee in Ammons v. Ally Financial, Inc.

In 2018, the Northern District of Ohio confronted a contract that contained both a TCPA consent clause and—unlike Reyes and the other cases discussed above, including the same court’s prior decision in Rodriguez—a specified procedure for revoking consent.  In Barton v. Credit One Financial, the contract at issue contained a bargained-for consent clause and additionally set forth that consent could be revoked by making a written request to the defendant containing specific information.  After the plaintiff instead attempted to revoke consent orally and filed suit after calls continued, the court found that the written revocation procedure was a valid contract term, and the plaintiff could not unilaterally alter that term, rendering his oral revocation attempt invalid.  This ruling was consistent with the court’s ruling in Rodriguez where the contract did not delineate a means of revocation.  Although it did not decide this issue, ACA International—which the D.C. Circuit decided a month before Barton—made a statement supporting the same proposition when it stated that although the decision “does not address revocation rules mutually adopted by contracting parties,” nothing in the 2015 FCC order “should be understood to speak to parties’ ability to agree upon revocation procedures.”

The lesson from Reyes, ACA International, and trial courts following those cases is that while an individual can revoke consent for TCPA purposes via “any reasonable means,” in the context of a reasonableness inquiry, courts will consider the impact of whether the consent was provided as part of a bargained-for contract term.  Although it remains to be seen whether other appellate courts will follow Reyes, the argument is now available to defendants (especially those litigating in the Second Circuit) that where consent was obtained via contract, it is not revocable.  However, because some courts criticize the notion of fully irrevocable consent, businesses drafting TCPA consent clauses in their contracts might consider following in the footsteps of the defendant in Barton and delineating a specific revocation procedure in their contracts.